SAN FRANCISCO—A resolution introduced Tuesday at the San Francisco Board of Supervisors stands in opposition to a federal defense law that many fear undermines constitutional rights by allowing the indefinite detention of U.S. citizens without charge or trial.
The National Defense Authorization Act (NDAA), passed by Congress in 2007 and renewed each year, contains provisions authorizing the U.S. military to indefinitely jail terrorist suspects and those aiding them.
“These indefinite detention provisions violate our fundamental American legal principle of the presumption of innocence. They violate our Fifth Amendment right of due process. They violate our Sixth Amendment right to fair trial,” said David Chiu, president of the board of supervisors at a rally in front of City Hall on Tuesday.
Chiu, a lawyer by training, authored the legislation that was introduced the same day at the full meeting of the Board of Supervisors.
Critics regard the provisions as unconstitutional, saying they could be applied by the government to arrest anyone, anywhere in the world, whom it deems a terrorist without charge or trial, including U.S. citizens on American soil.
Karen Korematsu, co-founder of the Fred T. Korematsu Institute, sees in the law “a terrifying parallel to the incarceration of Americans of Japanese ancestry during World War II.”
February 19th will be the 71st anniversary of President Franklin D. Roosevelt’s signing of an executive order that led to the arrest of 120,000 Japanese-Americans and Japanese immigrants who spent years in prison without a right to trial or legal assistance.
With the NDAA law we risk repeating history again, but now you don’t even have to look like the enemy.
—Karen Korematsu, co-founder, Fred T. Korematsu Institute
Karen Korematsu’s father, the late Fred Korematsu from Oakland, defied orders to report to the camp authorities in 1942, seeing his constitutional rights violated. He went to the Supreme Court, but the court defended his detention, citing “military necessity.” It took more than four decades before a federal court found that Japanese-Americans posed no threat and overturned his conviction.
“With the NDAA law, we risk repeating history again, but now you don’t even have to look like the enemy,” Korematsu said at the rally.
A broad coalition of civil rights and other groups has endorsed the resolution, with the Bill of Rights Defense Committee and Coalition for Safe San Francisco spearheading the efforts.
If the Board passes the legislation, San Francisco will join a growing number of now 18 cities having passed similar resolutions.
The resolution would instruct San Francisco public agencies “to decline requests by federal agencies acting under detention powers granted by the NDAA.” Additionally, it will ask members of Congress to repeal the indefinite detention provisions of the NDAA.
“It’s part of a groundswell that forces people in Washington … [to] pay attention to ordinary citizens and representatives around the country. It does send an important message,” said Stephen Zunes, professor of politics and international studies at the University of San Francisco.
The text of the proposed legislation expresses concern that the NDAA could allow the “indefinite military detention of activists, journalists, lawyers, and other Americans for nothing other than exercising their First Amendment rights of free speech, assembly, and association.”
Zunes, as a scholar on the Middle East, has interviewed members of terrorist groups in the past, like Hamas and Hezbollah.
“It is important to understand where they are coming from and how they are getting their support and political power. That means hearing their perspective,” Zunes said.
Since the NDAA would allow the detention of “associate forces,” he could be labeled a terrorist just by talking to such groups, Zunes says.
“That puts certainly journalists and scholars in a bind. In doing these kind of interviews … this could be used as an excuse to go after people like us as well,” Zunes said.
While Zunes does not expect the current administration to arrest him, “I could see a scenario where there might be another government like the Bush administration … that would see those who may have genuine disagreements with certain policies as terrorists or associates,” Zunes said.
Joe Nicholson, a lawyer from the SF 99% Coalition, said the key problem with the NDAA is that it is “unconstitutionally vague and overly broad … so that the average person cannot tell whether he is breaking the law or not.”
Critics like Nicholson point out that there used to be a strict requirement that a suspect can be only detained for being actively engaged in waging war against the United States, but with the NDAA and the concept of “associated forces,” it has opened the door wide, allowing many groups and individuals to be classified as terrorist suspects.
A group around journalist Chris Hedges, Pentagon whistleblower Daniel Ellsberg, and scholar Noam Chomsky are challenging the NDAA as unconstitutional in a lawsuit in a federal court. In a first ruling in September last year a New York court declared that the indefinite detention provisions violate the First and Fifth Amendments.
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